Hold Congress Accountable

Knowledge is power. It makes sure people understand what is happening to their country, and how they can make a difference. FreedomWorks University will give you the tools to understand economics, the workings of government, the history of the American legal system, and the most important debates facing our nation today. Enroll in FreedomWorks University today!

Blog

Given the harassment and everyday burdens that federal bureaucrats subject small businesses and families to, it seems obvious that decisions could be challenged by the basic process of judicial review. This right, however, was apparently not entirely evident.

The Supreme Court on Tuesday ruled unanimously in favor of property owners in a decision that weakens the EPA’s authority under the Clean Water Act. The ruling in United States Army Corps of Engineers v. Hawkes Co., Inc gives landowners and businesses the right to go to court when federal regulators trample their rights to property and due process.

Hawkes Case Background

In Hawkes, a Minnesota mining company sought permission to harvest moss for landscaping. Hawkes argued that since the property sat 120 miles away from the nearest river, with no bodies of water connecting the land to the nearest river, it was reasonable to conclude that the “swampland” was not subject to Clean Water Act jurisdiction under the Waters of the United States Act.

Hawkes’ seemingly logical reasoning was rejected by the trial court, holding that the landowner could choose to either abandon the business, pay over $270,000 for an unnecessary permit, or operate without a permit, risking daily fines of up to $37,500 as well as the possibility of imprisonment.

This decision was appealed by Hawkes. Reversing the decision of the lower court, the U.S. Eighth Circuit Court of Appeals held that due process requires that landowners have the opportunity to challenge a regulatory decision before being subject to financial and legal consequences.

The EPA and the Corps appealed to the U.S. Supreme Court. The Court upheld the ruling in a decision that emphasized landowner’s right to a day in court while issuing a firm precaution against the regulatory state.

EPA Claims Regulatory Authority under Clean Water Act

In a breath-taking assertion of administrative power, the EPA used the Waters of the United States Act to drastically expand its regulatory authority under the Clean Water Act to include areas of essentially dry land. WOTUS can now include occasionally wet areas such as ditches or even a puddle in someone’s backyard.

The EPA’s hyper-inflation under the Water of the United States is perhaps the largest power-grab by any federal regulatory agency. The EPA circumvents judicial authority and claims the power to “rule by regulation” when it exercises its unreviewable discretion to classify land as one of the “waters of the United States.”

Court Condemns Regulations as Unpredictable and “Notoriously Unclear”

In a separate opinion written by Justice Kennedy on behalf of himself and Justices Thomas and Alito, the Court’s decision was highlighted as a criticism of regulatory overreach.

Justice Kennedy concurred, “…the reach and systemic consequences of the Clean Water Act remain a cause for concern. As Justice Alito has noted in an earlier case, the Act’s reach is ‘notoriously unclear’ and the consequences to landowners even for inadvertent violations can be crushing.”

The opinion criticizes federal regulations as being often unpredictable: “An approved Jurisdictional Determination (JD) gives a landowner at least some measure of predictability, so long as the agency’s declaration can be relied upon.”

Regulators Evade Constitutional Rights to Property, Due Process

It seems unfair that agencies have developed an ad hoc reliance on enforcement actions to impose regulations without regard to the fair notice provision of the due process clause.

United States Army Corps of Engineers v. Hawkes Co., Inc. perfectly demonstrates that unpredictable regulatory decisions, when combined with vast discretionary authority, create the perfect storm for the suppression of our constitutional rights.

Limited government conservatives remain disgruntled in Congress, both when in the majority and when in the minority. Republicans campaign on shrinking government, lowering taxes, embracing free markets, and upholding the constitution. But members who actually hold themselves to these promises once in Congress exist only in small pockets.

Tucked away in the rules that House Democrats rolled out at the beginning of the 116th Congress is a provision that temporarily suspends the debt limit if the House of Representatives passes a budget resolution. The provision is what’s known as a self-executing rule. This may be legislative inside baseball, but it's a rather radical change to the rules that differs from even from a similar rule employed in the past.

On Wednesday, the Supreme Court heard oral arguments in Timbs v. Indiana. The case centers around the use of civil asset forfeiture and whether or not to incorporate the Excessive Fines Clause of the Eighth Amendment to the states. Although the Court won’t decide the case until next year, the oral arguments show that most of the justices appear ready to deal a long overdue blow to civil asset forfeiture.

On behalf of FreedomWorks’ activist community, I urge you to contact your senators and urge them to vote YES on the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court. Judge Kavanaugh is a worthy nominee who will interpret the Constitution as written and stop unconstitutional government expansion.

There was no shortage of fireworks in the Senate Judiciary Committee during the first day of the confirmation hearing for Judge Brett Kavanaugh, who has received a "well-qualified" rating from the American Bar Association. Chairman Chuck Grassley (R-Iowa) hadn’t even completed the first sentence of his opening statement before Sen. Kamala Harris (D-Calif.) interrupted, beginning nearly 90 minutes of obstruction by Democrats who serve on the committee and frequent outbursts from protestors in the audience.

On July 17th, the Environmental Protection Agency held a public hearing to discuss the EPA’s proposed rule change entitled: “Strengthening Transparency in Regulatory Science”. The hearing featured the usual suspects in discussions of EPA reform: lawmakers, scientists, industry leaders, and activists. It remains to be seen what the impact of the hearing will be, but for now the discussion remains contentious on both sides. The debate over the EPA’s rule centers around what practices the EPA is allowed to use when developing new regulations. More specifically, the rule would change the EPA’s current practice of utilizing “secret science” to support more regulations on American businesses.

On behalf of FreedomWorks activists nationwide, I urge you to contact your representative and ask him or her to vote in the manner prescribed for each amendment below to the Department of the Interior, Environment, and Related Agencies Appropriations Act, H.R. 6147. As is always the case, FreedomWorks reserves the right to key vote any amendment brought to the floor for a vote.

President Donald Trump named Judge Brett Kavanaugh to serve as the next associate justice on the Supreme Court on Monday evening to replace Justice Anthony Kennedy, who is retiring at the end of July after serving for 30 years on the bench. Judge Kavanaugh is President Trump’s second nominee to the Supreme Court, and he’s a good choice because of his experience and approach to the law, but he's not a home run nominee.

President Donald Trump is expected to announce his second Supreme Court nominee tonight at 9:00 pm. As one might expect, Democrats are losing their collective minds over Justice Anthony Kennedy’s retirement and the thought of another conservative jurist on the Court. But their primary argument for not confirming a nominee is very different from the set of circumstances that the Senate faced in 2016.